Ryan Anderson, Linda McClain debate religious liberty, anti-discrimination law| Apr 13, 2017
“Questions of religious liberty have animated our politics for centuries and that shows no sign of ending,” said Stephen Macedo, professor of politics and of the University Center for Human Values, in a debate on Wednesday. “Indeed, as everyone here likely knows, developments in the Obama administration, including the Affordable Care Act’s contraceptive mandate and the Supreme Court’s historic mandate to recognize the equal right of same-sex couples to marry, have renewed these controversies.”
Macedo's statement was part of a debate hosted by the Princeton Tory about state anti-discrimination laws and religious liberty. The event, which was moderated by Macedo, featured Dr. Ryan Anderson '04, a research fellow at the Heritage Foundation, and Professor Linda McClain, a visiting faculty fellow at the University Center for Human Values.
The 2014 Burwell v. Hobby Lobby ruling by the Supreme Court, which exempted corporations with religious owners from paying for contraceptive insurance, and the 2015 Obergefell v. Hodges court ruling, which legalized gay marriage nationwide, were watershed legal events that informed the basis for the debate.
Anderson, who has written two books on marriage and religious liberty, identified himself as a “liberal Aristotelian” who considers politics to be about “fostering the common good — creating the conditions necessary for citizens to flourish” while “placing an emphasis on individual liberty.”
Religion, he noted, is part of the common good, which he described as “multi-faceted,” meaning that the “Good Life” means different things for different people. Policies that advance the common good, however, can place an undue burden on a minority of citizens.
“We need to be attentive to that,” Anderson said. “So that’s where religious liberty exemptions might come into play.”
“The government can only substantially burden the free exercise of religion — even an incidental burden can be substantial — for a compelling state interest in the least restrictive way possible,” Anderson said. The Obergefell case, he argued, did not meet this threshold.
As comparison, Anderson offered an example of a justified anti-discrimination law, in his view: the 1964 Civil Rights Act. In this case, Congress recognized that people were engaging in “immoral and unjust forms of discrimination” that led to both material harms and stigmatization against African-Americans, Anderson said. Given that the rest of society — Hollywood, academia, media, etc. — was also racist, the racism would not fade away through regular civil society. Therefore, Anderson argued, anti-discrimination protection via the legal system was justified. In contrast, as of now, only a “handful” of cases of alleged discrimination against LGBT people have arisen in the Supreme Court, Anderson noted. He mentioned that we live in a society where the major cultural players already support gay rights.
“The Human Rights Campaign [has found] that over 90 percent of Fortune 500 companies have already adopted anti-discrimination statutes as a voluntary matter,” Anderson said. He argued that creating protected category status for LGBT people is unnecessary, given that society at large already supports gay rights.
In the discussion, Anderson ultimately steered away from religious objections to non-heterosexual orientation, instead discussing models of marriage and parenting. He offered the example of a Catholic charity that only places children with married heterosexual couples because “the two best dads in the world can’t replace a missing mom. The two best moms can’t replace a missing dad.”
“Mothers and fathers are different, and they’re not interchangeable,” Anderson explained. "And a child deserves both a mother and a father.”
McClain, however, argued that the U.S. family law system, in which she specializes, has outgrown and disavowed this gender complementarian interpretation of marriage.
“The way our family laws evolved in the last 50 years or so has been away from ... gender complementarian parenting to the point that when a judge has to decide a custody case, gender is not supposed to be a factor taken into account,” McClain said. McClain has written several books on marriage equality and constitutionalism.
“In family law, we don’t embody this idea that only a mother and a father can give children the proper gifts,” she said. When state legislatures moved toward same-sex marriage, they were recognizing steps that had already been taken toward a more “gender-neutral vision” of marriage.
McClain offered a historical perspective on the matter, pointing to the long and evolving tradition of anti-discrimination in the United States. She framed the Obergefell decision not as a radical break or inconsistency, but as continuation of this progressive tradition.
“Anti-discrimination laws have a long history prior to the federal Civil Rights Act of 1964,” she said. “The scope of state and federal laws evolves over time, both in terms of who is protected and which areas of everyday life are covered, as society’s understanding of prejudice, discrimination, and barriers to equal opportunity evolve.”
While race has served as a paradigm for anti-discrimination laws since 1954, McClain emphasized that a “protected category does not have to be 100 percent analogous to race to warrant protection.”
She noted that anti-discrimination laws are rooted in “common law tradition about the responsibility of innkeepers, taverns, etc. who served the public with open doors,” she said. “They had to serve customers unless they had a reasonable basis not to.”
Moreover, while the 1964 Civil Rights Act is assumed to have been the mainstream beginning of the anti-discrimination movement, 32 states had already passed anti-discrimination laws before Congress acted, McClain said. New Jersey passed its anti-discrimination law in 1945.
She added that laws protecting sexual orientation and gender identity are not new.
McClain added, “New Jersey added sexual orientation to its anti-discrimination law in 1991, over 25 years ago.” She cited a New Jersey Supreme Court decision that said, “[The] implicit recognition that discrimination based on ‘archaic’ and ‘stereotypical’ notions about homosexuals that bear no relationship to reality cannot be countenanced and gay men and lesbians feel stigmatizing injury and denial of equal opportunities.”
McClain emphasized the necessity of setting up clear boundaries as to the scope of religious liberty.
“The free exercise of religion does not include an absolute freedom to act based on your religious beliefs,” she said. “In a religiously diverse society, a rule that allowed such absolute freedom ... would conflict with rights of every person and lead to religious exemptions that would seriously undercut goals of anti-discrimination laws.”
McClain also questioned how far religious exemption laws should be allowed to reach in society. If [states] do have such exemptions, how far do they extend? For example, is it simply that merchant shouldn’t have to bake a cake or do something wedding-related? Or is it also that an employer shouldn’t have to hire a married gay man, or if they hired one, shouldn’t have to give insurance benefits to their spouse or treat them as married for purpose of employment? Should a landlord not have to rent to a newly married lesbian couple? How far are they allowed to live out their faith 24/7?”
Additionally, McClain repeatedly brought up the long legal tradition of public accommodation in the United States.
“If you open the doors to the public, if you advertise to the public, if you’re outward facing, you serve all customers. Specifically, you can’t turn away customers in these categories,” she explained. “We want a marketplace that’s not balkanized. We want to people to know that if they go into a business, they will be served.”
Paul Draper ’18, publisher of the Tory, expressed satisfaction over the debate and the arguments that both debaters presented. He observed that about two thirds of the lecture hall was full. Draper was particularly happy that professors from different departments came out for the talk.
“For the most part it was very civil,” he added. “People in particular during the Q&A asked good questions. I’m glad we had genuine intellectual investigation into the issue. I’m just happy that the debate went well and there wasn’t any name calling or anything and people are trying to hear out the other side.”
He predicted that that the issue of religious liberty will become an increasingly important national concern in the wake of Obergefell v. Hodges. “How do we live now in the world where [gay marriage] is codified into law, but there are people who have deeply held objections to it?” he said. “You already see [court] cases coming up through the pipeline. It’s going to come up a lot more.”
The debate, entitled “Religious Liberty or a License to Discriminate?” took place on Wednesday, April 12, in McCormick 101 at 4:30 p.m.
An earlier version of this article misstated that Paul Draper '18 was the Editor-in-Chief of The Princeton Tory. He is the publisher.